Games v University of Kent

Facts

Mr Games had applied for a full-time post as a lecturer in the University of Kent’s (“the University’s”) School of Architecture. Mr Games had been encouraged to apply, having established himself as an architectural writer and historian, and having lectured once a week at the University’s School of Architecture. Candidates were required to hold a PhD in the subject area. As Mr Games did not hold a PhD, his application was rejected on paper at the short-listing stage.

Mr Games claimed that the PhD requirement was indirect age discrimination. He brought a claim to the Employment Tribunal. The Employment Tribunal ruled that the PhD requirement did not put individuals of Mr Games’s age group at a particular disadvantage when compared to others, and, even if it did, it was objectively justified as a proportionate means of achieving a legitimate aim.

Mr Games appealed to the EAT.

Decision

The EAT allowed the appeal.

Particular disadvantage

The EAT held that the Employment Tribunal had erred in law in its approach to the question of ‘particular disadvantage’. The EAT did not rule on the PhD requirement placed those of Mr Games’s age at a particular disadvantage. Instead, the EAT referred to Homer v Chief Constable of West Yorkshire Police and held that statistics were not necessary for Mr Games to establish a particular disadvantage to himself and his group.

The EAT held that the Employment Tribunal had erred in not taking into account Mr Games’s own personal experiences and of others in his age group. The Employment Tribunal should not have relied solely on the fact that the chance of a candidate without a PhD being appointed to a permanent teaching post had substantially reduced over the last 15 years. The EAT held that the experience of those who belong to groups sharing protected characteristics is important material for a court or tribunal to consider.

The EAT also held that the question of whether Mr Games suffers a particular disadvantage must be assessed at the time when the provision, criteria or practice is applied, and not retrospectively.

Objective justification

The EAT held that the Employment Tribunal had erred as it did not give satisfactory reasons for its conclusion in relation to objective justification. The EAT held that the Employment Tribunal had failed to consider whether the requirement for a PhD was necessary for achieving the University’s aim. The Employment Tribunal provided no findings of fact as to why they considered that the PhD requirement was justified in the circumstances.